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Friday, December 30, 2016

New York Times Article on Stanford Sexual Assault Procedures Displays Shocking Ignorance of Relevant Federal Law

Today's New York Times carries a front-page article entitled "A Majority Ruled It Was Rape.  That Isn't Enough at Stanford."  The article, which extends for two full pages inside the (ever-shrinking) front section, faults Stanford University for failing to discipline a student who was accused of sexual assault by another student, after two separate panes concluded, each by a 3-2 vote, that the accused had in fact committed a sexual assault upon the accused.

Stanford's procedures for evaluating charges of sexual assault against a student established, at the time, 5-person panels to examine the "evidence" (which I put in quotes because what they review would not be "admissible evidence"in a properly conducted trial in the United States, which is a matter for another day).  The university required that at least 4 of the 5 panel members find against the accused before discipline could be meted out.   In this case, the first panel found 3-2 against the accused.  The accuser appealed to some other body on campus which agreed in part with her complaints about the first proceeding, and then a second panel was convened, which delivered the same 3-2 result.  So the accused was not disciplined.

According to the article, Stanford currently requires panels of only three persons now but now requires unanimity of the three to find an accused culpable.

The thrust of the article, obviously, is that it is unfair to accusers (predominantly female) that their accusations have to convince more than a simple majority to redress their grievances. The article concludes with a quote from the accuser that sums up the reporters' sentiments: "I am certain that this is not how the Title IX process is meant to work."

The accuser's "certainty" -- which has evidently been adopted by the reporters who turned her grievance into a front-page article -- is completely erroneous.  Put simply, a requirement of a unanimous verdict is exactly how Title IX proceedings do work. Indeed, the title of the article, to have been accurate, ought to have read: "A Majority Ruled It Was Rape.  That Isn't Enough -- Anywhere." (Of course, that would not have made for a good front-page story.)

All Title IX claims are adjudicated as civil cases in federal court. In all such cases, a party can request a jury trial.  Pursuant to Federal Rule of Civil Procedure 48, a jury verdict in a civil case requires the jury -- which may not be less than six people, in contrast with Stanford's three-person panels -- to reach a unanimous result. Thus, the "Title IX process" to which the accuser refers is, in fact, "meant to work" by means of unanimous verdicts. Falling short of unanimous agreement leaves the status quo in place and the accuser's grievances uncompensated.

This, it is worth emphasizing, is not a special rule for Title IX cases reflective of some patriarchal bias to protect male perpetrators.  It is the rule applied to all federal claims of any nature whatsoever. It is utterly non-discriminatory, measured by any non-gendered standard,

Sadly for Times readers, the article shows no awareness of this unanimity requirement in adjudication of Title IX grievances in the courts. As a result, the article likely misleads many readers into believing that Stanford, and other universities alluded to in the article, are acting "wrongly" or being "unfair," toward (predominantly female) accusers when, in fact, their standards are as non-discriminatory as they could be, mirroring as they do, the general standards of federal civil litigation.  (Indeed, those who are accused may have a colorable claim that the use of three-person panels to mete out punishment violates due process or Title IX or both, because the risks of bias and error are believed to increase to impermissible levels when juries are less than six persons, as the comments to FRCP 48 bear out.)

It's grotesquely embarrassing that neither of the reporters, nor any editor who vetted the article before it was published, displays any awareness of the fact that the premise of their story is completely at odds with the way the law that the story is written about actually works in practice.  I have a good deal of sympathy / empathy for journalists in the competitive environment they must operate in, when the pressure to generate stories that hold on to the attention of the declining subscriber base is so overwhelming.  But those feelings are easily overcome when the journalists in question set out on a social justice crusade and cast aspersions at other members of our society who, it turns out, actually know more about what they are doing than the reporters sanctimoniously faulting them.

It's also worth considering, although the authors failed to, that the existence of a 4-vote minimum might influence how panelists decide to vote.  Knowing that a 3-2 vote has no consequences for the accused may cause a voter to vote differently than if that third vote determines the accused's fate. I think it is a faulty premise to think that the third voter was sure the accused had committed a sexual assault.

There are many, many more things one could fault about the way sexual assault allegations are handled on college campuses. I could write hundreds of blog posts about the problems, starting with, why does anyone familiar with the "hostile environment" case law think that one student's allegations against another regarding a brief sexual encounter are a Title IX issue in the first place?  What about that implicates the "interstate commerce" power whereby Title IX was enacted?  Considering how ultra-leftist campuses are, and how feminist voices dominate discourse concerning gender matters on campuses, how can anyone seriously contend that a college campus is a hostile environment for women?  I hope that the incoming administration will make clear early on that such incidents do not implicate Title IX at all, and universities need not do more than refer such matters to the local law enforcement authorities for investigation and prosecution as justified,.  Further, I would hope that the incoming Congress would resolve the issue for the foreseeable future by defining "hostile environment" to make clear that there must be repeated, persistent and substantial acts towards a group of persons before a "hostile environment" is created.

But, regardless of what the future holds, as of now, the notion that Title IX requires a simple majority to believe an accuser is wholly at odds with federal law and in truth amounts to no more than a case of special pleading by persons who are ignorant as to the law.